Allen v. Yukins

• Decision Date: 20 April 2004
• Docket Number: No. 03-1078.,03-1078.
• Citation: 366 F.3d 396
• Parties: Charmel ALLEN, Petitioner-Appellant, v. Joan N. YUKINS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

366 F.3d 396

Charmel ALLEN, Petitioner-Appellant, v. Joan N. YUKINS, Warden, Respondent-Appellee.

No. 03-1078.

United States Court of Appeals, Sixth Circuit.

Submitted: March 17, 2004.

Decided and Filed: April 20, 2004.

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Craig A. Daly (briefed), Detroit, MI, for Petitioner-Appellant.

Debra M. Gagliardi (briefed), Asst. Atty. Gen., Office of the Attorney General, Corrections Division, Lansing, MI, for Respondent-Appellee.

Before: KRUPANSKY and GILMAN, Circuit Judges; RUSSELL, District Judge.^*

OPINION

GILMAN, Circuit Judge.

Petitioner Charmel Allen, a Michigan state prisoner, appeals from the district court's dismissal of her petition for a writ of habeas corpus. The district court concluded that Allen's petition was barred by the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act (AEDPA). Allen contends that the district court erred in dismissing her petition. She first argues that her motion for state postconviction relief, which claimed that her counsel on direct appeal had been constitutionally ineffective, should be considered part of the direct appeals process, thus delaying the start of AEDPA's statute of limitations. Alternatively, Allen argues that even if her petition was untimely, the delay should be excused either because she is entitled to equitable tolling or because she is actually innocent of the crime for which she was convicted. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A jury convicted Allen of both felony murder and assault with the intent to commit murder on the basis of an incident that occurred in September of 1990. The Michigan Court of Appeals provided the following summary of the facts underlying Allen's conviction:

Defendant lived in an apartment across the hall from Brian Carson and Larry Wallace, who were roommates. At trial, it was revealed that on the date in question, defendant could not account for approximately $1,200 of her ex-boyfriend's money. Testimony revealed that this money was derived from the illegal drug trade. The prosecution theorized that defendant was fearful of the probable consequences of her inability to locate the missing funds and, thus, desperately plotted to recoup them. Hence, on the night in question, defendant, accompanied by Anastasia [Allen, the defendant's sister] and [Ronald] Light, forcibly entered Carson's and Wallace's apartment and asked for money — Light possessed a firearm. A struggle ensued. Wallace died as a result of being shot at close range, and Carson was severely wounded.

The Michigan Court of Appeals vacated Allen's conviction for felony murder in May of 1991, but affirmed her conviction for assault with the intent to commit murder. Both the prosecution's application for leave to appeal and Allen's application for leave to cross-appeal were subsequently denied by the Michigan Supreme Court.

On remand to the trial court, Allen pleaded nolo contendere to a charge of manslaughter. The Michigan Court of Appeals affirmed her manslaughter conviction and sentence on September 23, 1997. Allen did not seek leave to appeal this decision to the Michigan Supreme Court.

She later filed a motion for relief from judgment in the trial court on September 28, 1998, seeking resentencing on the assault charge. The trial court denied Allen's motion. She then filed a delayed application for leave to appeal, which was denied by both the Michigan Court of Appeals and the Michigan Supreme Court. The Michigan Supreme Court denied Allen's motion for reconsideration on October 30, 2000.

Allen filed her petition for a writ of habeas corpus in the district court almost a year later, on October 22, 2001. The petition challenges the constitutionality of her conviction and sentence on the assault charge. She does not, however, challenge the constitutionality of either the subsequent plea of nolo contendere to the manslaughter charge or the resulting sentence.

II. ANALYSIS

A. Standard of review

This case is governed by AEDPA, codified principally at 28 U.S.C. § 2254(d), because Allen filed her habeas petition in October of 2001, well after AEDPA's effective date of April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, factual findings made by a state court are presumed correct unless the petitioner rebuts the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). We review the district court's decision to deny a writ of habeas corpus de novo. Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir.2000).

B. Does a state postconviction motion claiming ineffective assistance of appellate counsel restart AEDPA's statute of limitations?

AEDPA imposes a one-year statute of limitations for habeas petitions that challenge state-court judgments. The relevant section provides as follows:

(1) A 1-year statute of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review....

28 U.S.C. § 2244(d). AEDPA further provides, however, that the statute of limitations is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending...." 28 U.S.C. § 2244(d)(2).

1. When did direct review of Allen's assault conviction conclude?

The timeliness of Allen's petition turns on when the judgment in her state case became final, thereby starting AEDPA's one-year limitations period. According to the district court, the triggering event occurred when the Michigan Court of Appeals affirmed Allen's manslaughter conviction and sentence on September 23, 1997. The district court reasoned that Allen's conviction became final 56 days later, on November 18, 1997, when her time to appeal to the Michigan Supreme Court expired. See Michigan Court Rule 7.302(C)(2).

Although Allen's brief is not clear on this point, she appears to argue that her conviction was actually final much earlier, on October 14, 1994, when the Michigan Supreme Court denied her application for leave to cross-appeal the Court of Appeals's decision affirming her assault conviction. She argues for this earlier date in the apparent belief that it bolsters her contention that equitable tolling should be applied. See Part II.C.1. below. Because Allen's conviction, under this theory, would have been final prior to the enactment of AEDPA, Allen's time to file her habeas petition would have expired on April 24, 1997. See Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir.1999) (holding that petitioners whose convictions became final before the enactment of AEDPA had a one-year grace period after AEDPA's effective date to file their federal habeas petitions). Allen, however, did not file her habeas petition until October 22, 2001, approximately four years and six months later.

We do not have to decide, however, whether the district court was correct in concluding that Allen's conviction did not become final until November 18, 1997. Even giving Allen the benefit of that later date, her petition was still untimely.

If Allen's conviction became final on November 18, 1997, then AEDPA's statute of limitations would have begun running the next day, November 19, 1997. See Fed.R.Civ.P. 6 ("In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included."). The statutory period would then have been tolled from the date that Allen filed her motion for relief from judgment, September 28, 1998. See 28 U.S.C. § 2244(d)(2). At that time, 51 days would have remained of the one-year limitations period.

The state postconviction review process continued until October 30, 2000, when the Michigan Supreme Court denied Allen's motion for reconsideration. See Carey v. Saffold, 536 U.S. 214, 219-20, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (concluding that an application for state postconviction relief is pending, and the federal statute of limitations is therefore tolled, "as long as the ordinary state collateral review process is `in continuance'"). After Allen's motion was denied, the statute of limitations would have continued to be tolled during the 90 days in which Allen could have sought a writ of certiorari from the United States Supreme Court. See Abela v. Martin, 348 F.3d 164, 172-73 (6th Cir.2003) (en banc). That 90-day period would have expired on January 28, 2001, causing the federal statute of limitations to resume running the next day, on January 29, 2001. With 51 days remaining in the statutory period, Allen would have had until March 20, 2001 to file her habeas petition in the district court. But Allen did not file her habeas petition until October 22, 2001, approximately seven months later.

Thus, whether the direct-review process concluded when the Michigan Court of Appeals affirmed Allen's assault conviction, or when that court subsequently affirmed her manslaughter conviction, the result is the same: Allen's petition was untimely. We therefore will assume without deciding that the district court's analysis was correct, and that Allen's conviction became final on November 18, 1997.

2. Does a state postconviction motion claiming ineffective assistance of appellate counsel restart the one-year limitations period?

In an attempt to demonstrate that her petition was in fact timely, Allen argues that a state postconviction motion claiming ineffective assistance of appellate counsel should be considered part of the state's direct-review process. Under this theory, Allen's habeas...